Setback for Abu Ghraib contractors

Posted Fri, May 11th, 2012 6:15 pm by Lyle Denniston

In a significant — though not necessarily final — setback for military contractors sued in U.S. courts for allegedly torturing Iraqis at the infamous Abu Ghraib military prison in Iraq, a divided Fourth Circuit Court refused on Friday to rule immediately on the companies’ claim that they have legal immunity to the damages lawsuits. By a vote of 11-3, the en banc Circuit Court allowed two federal judges — one in Virginia, one in Maryland — to gather more information before ruling on the immunity claims.

The dissenters argued that “only the Supreme Court can now fix our wayward course.” An appeal to the Justices seems inevitable. The dissenters complained in exceedingly strong language that the majority, by allowing the lawsuits to go perhaps many steps further, was permitting the courts to intrude deeply into the U.S. military’s conduct of activities in a war zone. (The 114-page decision, including a majority opinion, two brief concurring opinions, and two lengthy dissenting opinions, can be read here.)

The cases, if immunity is denied and that denial withstands future appeals, will turn on whether two companies hired by the U.S. military to work in Iraq had engaged in torture and physical assault as they sought to gather intelligence by interrogating Iraqis imprisoned as potential insurgents against American, Iraqi, and allied forces during the war there. The claims of torture recall the globally publicized photographs showing serious abuses of prisoners at the Abu Ghraib site near Baghdad.

One of the lawsuits, pursued in federal court in Alexandria, Va., is aimed at CACI International, a Virginia company, and was filed by four Iraqis who had been held at the prison. That lawsuit claims violations of the Alien Tort Statute and Virginia state tort law. The other lawsuit, filed in federal court in Greenbelt, Md., is aimed at L-3 Services, Inc. (formerly Titan Corp.), also based in Virginia, plus one of its Maryland employees, and was filed by 72 Iraqis who had been held at Abu Ghraib. That lawsuit makes similar legal claims. Both seek money damages along with punitive money damages for the alleged injuries they claim they suffered at the prison. The two companies were hired to provide Arabic language translators, and to take over interrogation of prisoners suspected of insurgency.

The two District judges handling the cases refused to dismiss the lawsuits in response to the two companies’ arguments that they had either complete or qualified immunity, based on various theories, including claims that those who work for the military in a war zone cannot be sued in their own country by foreigners who were nationals of the foreign land — a “battlefield” immunity — and that they have a form of legal immunity derived from the military’s immunity to lawsuits for official war zone actions. A divided three-judge panel of the Fourth Circuit ruled last September that the companies had legal immunity to the claims, and ordered the lawsuits dismissed. That is the result the en banc court overturned Friday.

The majority opinion, written by Circuit Judge Robert B. King, did not settle any issues in the case, other than the question of whether the Circuit Court had jurisdiction at this stage to hear the two companies’ pre-trial appeal based on their immunity claims. The Circuit Court concluded that the appeals did not come within what it said was a narrow exception to the usual rule that there must be a final decision in a trial court on a decisive issue before an appeal can be pursued ahead of the actual trial.

It was just too early in the proceedings, and too little is known, the majority concluded, for the two District judges to decide the immunity question. (The two judges had gone only so far as to deny motions to dismiss, but had not resolved the ultimate question of immunity for either firm. The companies thus still could win on that point Deciding the immunity issue, Judge King’s opinion said, involves such issues as whether the military contractors were actually integrated into the operations of the military coalition led by U.S. forces, whether they had obeyed their instructions — including a duty to avoid torture, and what level of immunity — if any — they can claim. The majority insisted that allowing lawyers for the Iraqis to seek further information, through”discovery” orders, would not require the courts to probe into actual military operations, or to summon military officers to testify in court on their relationships with CACI and L-3.

Many of the companies’ legal arguments, the majority said, must be treated as defenses to liability, not as issues of immunity to being sued altogether. The majority cautioned against playing “word games” with the notion that an entity has a right not to be tried at all for claimed misconduct. Virtually every right that could be protected by dismissing a case before the trial even begins could be loosely described as a right not to be tried, the majority commented.

The King opinion lacked any of the soaring rhetoric of the dissents; it was, in fact, a workmanlike but dry analysis of the “collateral order” doctrine — the basis for pre-trial appeals in federal courts — and of the history of claims of immunity under various Supreme Court and Fourth Circuit precedents.

The majority opinion was supported in full by eight of the 14 judges taking part on the en banc court, although two members of the majority said in a separate opinion that the District judges handling the cases should proceed with caution and be sensitive to the companies’ claims of immunity, as well as their argument that any dispute over their performance under their contracts was a matter for resolution with the government as the overseer of their contracts. Those two judges said the immunity arguments were “far from lacking in force,” especially in light of a Supreme Court decision last month (Filarsky v. Delia, upholding legal immunity for a lawyer working for a city government in California).

Circuit Judges J. Harvie Wilkinson III and Paul V. Niemeyer each wrote a dissenting opinion, with each joining the other’s opinion, and with Circuit Judge Dennis W. Shedd joining both opinions.

Judge Wilkinson argued that, “thanks to the majority’s efforts, contractors that were previously subject to the control of the executive branch have new judicial masters. But when unelected judges render contestable decisions about military policy in the course of applying tort law to contractors, the public will be unable to remove them from their posts. This flies in the face of our constitutional tradition of ensuring some popular control over the prosecution of a war.”

He argued that the U.S. military had hired CACI and L-3 because the forces were seriously short of capable Arabic translators, and needed help from private firms. From here on, he warned, both the government will be wary of hiring contractors to perform battlefield functions, and private companies will be reluctant to accept such assignments, because no one will know when a lawsuit will arise over the inevitable missteps that occur in the heat of combat.

Judge Niemeyer’s dissent argued that it was already clear, based simply on what the Iraqis’ lawsuits had claimed, that the companies were legally immune to those lawsuits. He argued that the cases should have been dismissed immediately by the District judges, because the claims at issue involved issues that the Constitution assigns to Congress and to the President as Commander-in-Chief. He agreed that the Circuit Court had no jurisdiction to hear the appeals, but only because the subject matter of the lawsuits was constitutionally entrusted to the political branches. So, Niemeyer said, the District Court also lacked any jurisdiction to proceed.

It is unclear how much time is likely to elapse before the two District judges are able again to rule on immunity issues, but Judge Wilkinson predicted that the dispute would go on for years.

Now that the Fourth Circuit has issued its decision through its full membership (with one new judge not participating), the next place for the companies to take the dispute is the Supreme Court.

Although the Executive Branch clearly has an interest in the liability of military contractors, the Obama Administration — invited into the case by the Circuit Court — agreed with the result that emerged Friday: that is, that the Circuit Court lacked jurisdiction at this point to decide the immunity issues. The government brief in the case said that it was not yet prepared to argue that the contractors had shown that they had a right to appeal immediately. Presumably, if the case goes to the Supreme Court, the government may wind up having a role there.

Aug. 2015

In a conversation with Bill Kristol of The Weekly Standard, Justice Samuel Alito reflects upon (among other things) his arrival on the Court, recent First Amendment cases, the themes in his dissent in Obergefell v. Hodges, and his love for baseball.